The Scottish Government

USE OF DNA AND FINGERPRINT DATA

In September 2007, we asked Professor James Fraser to carry out an independent review of the operation and effectiveness of the statutory regime governing police powers regarding the acquisition, use and destruction of forensic data in relation to persons prosecuted for certain sexual or violent offences but not convicted, and persons dealt with by a children's hearing who accept that they have committed certain sexual or violent offences or are found by a sheriff to have done so.

A consultation on police powers to retain DNA and fingerprint evidence was launched on 23 September 2008 and we will use the Criminal Justice and Licensing Bill to make any legislative changes that are required.

Relevant weblinks

Scottish Government news release announcing Professor Fraser review - September 2007

http://www.scotland.gov.uk/News/Releases/2007/09/24105858

Scottish Government consultation - September 2008

http://www.scotland.gov.uk/Consultations/Current

BENEFIT OF MAKING THE PROPOSED CHANGE

Greater clarity, consistency and effectiveness in the statutory framework governing the retention of DNA samples and fingerprints.

DISCLOSURE OF EVIDENCE

In the Scottish legal system a fundamental principle is that an accused is entitled to a fair trial. To achieve this the Crown has an obligation to give the accused notice of the charge against him and to make available information/evidence which the Crown intends to bring to prove the charges. The Crown should also ensure any exculpatory material is identified and given/disclosed to the defence ( exculpatory material is any evidence which may justify or excuse an accused's actions, and which will tend to show the accused is not guilty or had no criminal intent for the offence they are being prosecuted for).

Following decisions of the Judicial Committee of the Privy Council in 2005 in the cases of Holland and Sinclair, it became clear that a review on Disclosure was required. Lord Coulsfield was commissioned to carry out a review in November 2006, by the previous Justice Minister.

Lord Coulsfield's 'Review of the Law and Practice of Disclosure in Criminal Proceedings in Scotland' was published in August 2007. The report contained 44 recommendations including proposing that there should be legislation to clarify the legal requirements of disclosure and to establish a mechanism for resolving the conflicts of interest which arise when disclosure of important material might put witnesses or security interests at risk. His report also made recommendations about the practical arrangements which should support disclosure in solemn and summary cases, and also addressed issues such as Crown precognitions, criminal history records and the prevention of misuse of disclosed material.

In November 2007, we published a consultation paper on proposals for legislation to implement the recommendations in the Coulsfield report. Following consideration of the responses received and as announced in April 2008, we propose to bring forward legislation to establish a statutory system for disclosure to include:-

• Statutory definition of disclosure;
• Provide that the Crown has a duty to disclose to the defence;
• Provide that disclosure is a continuing duty;
• Clarify that information comes in a variety of formats;
• Define how disclosure can be made and when;
• State that all material information must be disclosed and that 'materiality' should apply to statements and previous convictions;
• Legislation on disclosure will be supported by a statutory Code of Practice;
• Provide for a system of Public Interest ( PI) hearings; and
• Provide for misuse of disclosed information

Relevant weblinks

Lord Coulsfield's 'Review of the Law and Practice of Disclosure in Criminal proceedings in Scotland' - August 2007

http://www.scotland.gov.uk/Publications/2007/09/11092728/0

Scottish Government consultation paper on proposals for legislation to implement the recommendations in the Coulsfield report - November 2007

http://www.scotland.gov.uk/Publications/2007/11/09145246/0

Responses received to consultation - March 2008

http://www.scotland.gov.uk/Publications/2008/03/12145347/0

Scottish Government announcement - April 2008

http://www.scotland.gov.uk/Publications/2008/04/24084456/0

BENEFIT OF MAKING THE PROPOSED CHANGE

Effective disclosure procedures are recognised as necessary to ensure trials are conducted fairly and legislation will clarify what requires to be disclosed.

SCOTTISH LAW COMMISSION'S REPORT - CROWN RIGHT OF APPEAL IN SOLEMN PROCEEDINGS

Three types of ruling can bring solemn proceedings to an end without the verdict of a jury. The first is a ruling of no case to answer, where the judge rules, at the close of Crown evidence, that the evidence led by the prosecution is insufficient in law to justify the accused being convicted. The second is a direction, in the course of the judge's charge to the jury, that the jury should not convict on a particular charge, or should consider only a reduced charge. Such a direction, made following a so-called "common-law submission", is made after all the evidence has been heard. The third is a ruling that an important item of prosecution evidence is inadmissible, leaving the Crown with no option but to abandon the prosecution. At present, the Crown has no means of appealing against any of these rulings.

The Scottish Law Commission was asked to look into whether the Crown should have a right of appeal in these cases and their report was published on 31 July 2008. The SLC's main conclusion is that the Crown should be provided with certain rights of appeal. The report makes 22 recommendations for changes to solemn criminal procedure. The principal proposed changes are:

• Extension of the grounds upon which the accused person may submit, at the close of the Crown case, that he has no case to answer - the proposal is to extend section 97 of the Criminal Procedure (Scotland) Act 1995 to permit a submission at the close of the Crown evidence that, on the evidence led by the Crown, no reasonable jury, properly directed, could convict of the offence charged. [Recommendation 1]
• The introduction of a statutory replacement for the "common-law submission" at the close of the whole evidence in the case. [Recommendation 2]
• The granting to the Crown of a right of appeal, with leave of the trial court, against rulings of no case to answer, decisions on the statutory replacement of a common law submission and certain findings relating to the admissibility of prosecution evidence. [Recommendations 3, 7, 9 and 12]

As the report was only recently published, we are considering the proposals. Consultation on the issues identified in the report was undertaken by the SLC in the form of preliminary consultation with representatives of the Faculty of Advocates, the Law Society of Scotland and the Crown Office, followed by a SLC Discussion Paper published in March 2008. The final report outlines the various views submitted to the SLC during this process and we are currently considering how best to bring forward appropriate provisions in the Criminal Justice and Licensing Bill.

Relevant weblinks

SLC Report on Crown Appeals - July 2008

http://www.scotlawcom.gov.uk/html/cprights.htm

BENEFIT OF MAKING THE PROPOSED CHANGE

We are considering how best to clarify and improve the law in this important area.

MODERNISATION OF THE JURY SYSTEM

We have recently sought views on a range of proposals connected with the operation of the jury system in our courts. It is likely that some of the proposals for reform will require legislation and we intend that the Criminal Justice and Licensing Bill will be used to legislate for these reforms.

A consultation seeking views was launched on 18 September 2008.

Relevant weblinks

The Modern Scottish Jury in Criminal Trials consultation document - September 2008

http://www.scotland.gov.uk/News/Releases/2008/09/18102403

BENEFIT OF MAKING THE PROPOSED CHANGE

Help modernise the operation of juries in our courts.

"UNRULY" CERTIFICATES FOR CHILDREN

Under section 51 of the Criminal Procedure (Scotland) Act 1995, a child aged 14 or older who appears before a court charged with a crime or offence may, because of their "unruly" character, be detained in the prison system.

On 21 February 2008, we announced plans to repeal this law and we will do this through the Criminal Justice and Licensing Bill. Once the repeal of section 51 is in place, it will mean that where a court remands or commits a child for trial or for sentence and does not release him on bail or ordain him to appear, the court shall commit him to an appropriate local authority to be detained in secure accommodation (where necessary) or a suitable place of safety. We have consulted on the implications of this change in legislation and, using an analysis of the responses received, are currently considering the need for any alternative provision of accomodation.

Relevant weblinks

Scottish Government news release - February 2008

http://www.scotland.gov.uk/News/Releases/2008/02/21081302

BENEFIT OF MAKING THE PROPOSED CHANGE

Will ensure that the needs and welfare of young people are best addressed through the use of appropriate facilities.

WORKING TOWARDS DELIVERING A MODERN COHERENT PENAL POLICY

We support fully the principles underlying the combined sentence measures in the Custodial Sentences and Weapons (Scotland) Act 2007 ("the 2007 Act"). However, and as the independent Scottish Prisons Commission also concluded, the regime as enacted is simply not workable.

Taking into account the Prisons Commission's helpful conclusions, we intend to include in legislation modifications to the provisions in the 2007 Act that will deliver a more proportionate and effective system for the end to end sentence management of offenders and consequently end the current arbitrary system of early release. These measures are an integral part of our commitment to deliver a coherent penal policy, the plans for which will be published before the end of the year.

We propose to bring forward provision to introduce a new community supervision sentence, and we intend to fully announce our response to the recommendations contained within the Prisons Commission's report later this year. We intend to take forward any required legislative changes within the Criminal Justice and Licensing Bill.

Relevant weblinks

Scottish Government report "Reforming and Revitalising: Report of the Review of Community Penalties" - November 2007

http://www.scotland.gov.uk/Publications/2007/11/20142739/0

Scotland's Choice: Report of the Scottish Prisons Commission - July 2008

http://www.scotland.gov.uk/Publications/2008/06/30162955/0

BENEFIT OF MAKING THE PROPOSED CHANGE

Ensuring sentences served in the community are robust, immediate and visible to the community. Will improve the system of early release as part of the delivery of a coherent penal policy, and introduce a more structured sentence management regime tailored to the risk and needs of the offender and public safety.

CREATION OF A SCOTTISH SENTENCING COUNCIL

The judicially-led Sentencing Commission, set up by the previous administration, examined the issue of consistency in sentencing in our criminal courts. The central recommendation of the Commission's 2006 report, The Scope to Improve Consistency in Sentencing, was the creation of a procedure for giving effect to sentencing guidelines. Our manifesto for the 2007 Scottish parliamentary elections also included a commitment to create a system of sentencing guidelines and a Sentencing Council to oversee that system. In addition, the Scottish Prisons Commission recommended in its recent report that we create a body to develop clear sentencing guidelines that can be applied throughout Scotland.

We propose that a Scottish Sentencing Council should be created to provide a new sentencing guidelines regime. This regime will ensure greater consistency, fairness and transparency in sentencing, and help to reassure the public that justice is being done.

A consultation paper outlining the detail of our proposals was published on 1 September 2008.

Relevant weblinks

Sentencing Commission report "The Scope to Improve Consistency in Sentencing" - August 2006

http://www.scottishsentencingcommission.gov.uk/docs/consistency/Consistency%20Report%20-%20Final.pdf

Scotland's Choice: Report of the Scottish Prisons Commission - July 2008

http://www.scotland.gov.uk/Publications/2008/06/30162955/0

Scottish Government consultation on the creation of a Scottish Sentencing Council - September 2008

http://www.scotland.gov.uk/Publications/2008/08/29100017/0

BENEFIT OF MAKING THE PROPOSED CHANGE

Greater consistency and transparency in sentencing, with a related increase in public confidence in the integrity of the Scottish criminal justice system.

STATUTORY STATEMENT OF THE PURPOSE AND PRINCIPLES OF SENTENCING

We consider that the purpose of sentencing should be laid down in statute to create a straightforward and transparent framework within which sentencers can base their decisions in individual cases. By outlining this purpose in statute we can ensure that the public has a much clearer understanding of what sentencing is actually for. By taking a similar approach to the principles of sentencing, we can help to ensure that the public is clear on the key factors that every sentencer must have regard to when making decisions in individual cases. By increasing the level of public understanding we can improve confidence in the sentencing process and the wider criminal justice system.

A consultation paper outlining the detail of our proposals was published on 1 September 2008.

Relevant weblinks

Scottish Government consultation on the creation of a Scottish Sentencing Council - September 2008

http://www.scotland.gov.uk/Publications/2008/08/29100017/0

BENEFIT OF MAKING THE PROPOSED CHANGE

Greater transparency in and understanding of the sentencing process, with a related improvement in public confidence in the integrity of the Scottish criminal justice system.

CREATION OF A NEW OFFENCE OF DIRECTING OR BEING INVOLVED IN ORGANISED CRIME

We are determined to root out the evil that is serious organised crime, to allow honest people and their businesses to prosper and to help our communities meet their full potential. It is what the people of Scotland want, what they deserve and what we must deliver. We have established the Serious Organised Crime Taskforce to help spearhead our efforts.

We want to make it easier to convict those criminals who work together in groups in criminal operations and to expose them to the provisions within the Proceeds of Crime Act 2002 so as to strip them of their stained wealth. The distinguishing feature of organised crime is that people work together in groups to maximise the profits they make from crime and at the same time maximise the misery they place on our communities.

In many cases people will be prosecuted for a range of offences such as drug trafficking, violence and intimidation. The purpose of this new offence is to recognise that these individuals do not work in isolation but work together in evolving and changing groups to wreck misery on Scottish communities.

At the moment some of those people at the top end of serious organised crime networks distance themselves from conducting criminal activity, but instruct others to do so on their behalf - we want to give the police the tools to investigate those individuals as well as their "lieutenants" who carry out the specific offences or indeed others who support those activities.

We plan to do this by creating a new offence of directing a serious organised crime group and a new substantive offence of being involved in serious organised crime.

In addition we plan a statutory aggravation offence of being involved in serious organised crime which would allow courts to take into account the activities of the offender when passing its sentence. It would be for the courts to determine whether to extend the sentence to take account of the aggravation. The court would be expected to make this clear at the time of sentencing.

In view of the serious nature of these offences we believe that the offence should have the potential to be prosecuted on indictment in the High Court or the Sheriff Court. We would also wish to have the flexibility of hearing cases under summary procedure in the Sheriff Court.

We propose that the maximum penalty should be 10 years imprisonment with or an unlimited fine if tried on indictment in the High Court, and 5 years in the Sheriff Court and any trial under summary proceedings to be set at 12 months.

Failing to Report Organised Criminal Activity

The Serious Organised Crime Taskforce also recommended that we provide for a related offence to make it against the law to fail to report activity relating to serious organised crime when an individual either knows or suspects it is taking place and they are benefiting from that knowledge. We would want the offence to be extended to include individuals as well as businesses and the regulated sector. The overall aim would be to capture those that are knowingly living off the wealth of organised crime (for example spouses/relatives) even if they are not directly involved in the crime or those who are supporting it in a professional capacity (such as any dishonest lawyers and accountants).

For this offence we intend to provide for a maximum penalty of 5 years imprisonment on indictment and 12 months imprisonment under summary procedure.

BENEFIT OF MAKING THE PROPOSED CHANGE

We want these new offences to capture the "big players" who direct organised crime along with their more junior associates who ensure that criminal activity is conducted and also to capture those people who happily live off the wealth created from organised crime or who facilitate the activity in a professional capacity such as lawyers and accountants.

PROHIBITION OF THE INTRODUCTION AND USE OF PERSONAL COMMUNICATION DEVICES (INCLUDING MOBILE PHONES) IN PRISONS

Intelligence information available to Scottish Prison Service ( SPS) suggests that mobile phones are commonly used within prisons for, amongst other purposes,

• the continuation of criminal activities within the prison;
• to intimidate witnesses; and
• to facilitate the supply of, and payment for, illegal drugs.

Intelligence information also suggests that prisoners who have access to a mobile phone are frequently bullied by those who do not.

The smuggling of mobile phones into prisons is becoming increasingly difficult to detect given that mobile phone technology is decreasing in size. This is particularly problematic bearing in mind that a very common method of smuggling a mobile phone is through packing in a bodily orifice. Other methods are used, however, for example throwing over the prison walls or, at times, introduction via a contractor carrying out work at the prison.

In many instances it is simply a SIM card which is introduced. A small number of handsets are shared amongst prisoners, who "take turns" at inserting their SIM cards into them. SIM cards are, of course, extremely difficult to detect.

Section 41 of the Prisons (Scotland) Act 1989 makes it an offence to bring or introduce, or attempt to introduce, certain items into a prison without reasonable excuse. The list of prohibited items includes, amongst others, drugs and offensive weapons. Section 41(1)(e) goes on to make the general provision that it is an offence to bring or introduce, or attempt to bring or introduce any article which is a prohibited article within the meaning of the Prison Rules, made under section 39 of the Prisons (Scotland) Act 1989.

The maximum penalty which could be imposed under the 1989 Act would be for a fine not exceeding level 3 on the standard scale, or imprisonment for 30 days. In contrast following the model of sections 40C and D of the Prisons Act 1952, which were introduced by the Offender Management Act 2007, for prisons in England and Wales, the maximum penalty which may be imposed on summary conviction is imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum or both. The maximum penalty on conviction on indictment is imprisonment for a term not exceeding 2 years or an unlimited fine or both. We consider maximum penalties of this level will prove a far more effective deterrent than that which could be imposed at present.

We propose to make it a specific offence to introduce and/or use a personal communication device (including mobile phones) in a prison, along the lines of sections 40C and D of the Prisons Act 1952. We propose that the penalties available in England and Wales in respect of possession of a communication device should accompany the creation of this new offence.

Alongside the legislation, SPS also intends to introduce the use of signal blocking devices (mobile phone blockers) in prison grounds.

BENEFIT OF MAKING THE PROPOSED CHANGE

Will provide an effective deterrent against the use of mobile phones in prison and help tackle prisoners who continue their criminal activities from inside prison.